Benham v. City of Charlotte

• Decision Date: 15 February 2011
• Docket Number: No. 10–1132.,10–1132.
• Citation: 635 F.3d 129
• Parties: Philip BENHAM, as an individual and as a representative of Operation Save America, Inc.; Sheryl Chandler, as an individual and as a representative of Operation Save America, Inc.; Operation Save America, Incorporated, a non-profit corporation, Plaintiffs–Appellants,v.CITY OF CHARLOTTE, NORTH CAROLINA, a political subdivision of the State of North Carolina; Emily Westbrook, in her individual capacity; Keith Parker, in his individual capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

635 F.3d 129

Philip BENHAM, as an individual and as a representative of Operation Save America, Inc.; Sheryl Chandler, as an individual and as a representative of Operation Save America, Inc.; Operation Save America, Incorporated, a non-profit corporation, Plaintiffs–Appellants,

v.CITY OF CHARLOTTE, NORTH CAROLINA, a political subdivision of the State of North Carolina; Emily Westbrook, in her individual capacity; Keith Parker, in his individual capacity, Defendants–Appellees.

No. 10–1132.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 2010.Decided: Feb. 15, 2011.

Frederick Herbert Nelson, American Liberties Institute, Orlando, Florida, for Appellants. Robert Erwin Hagemann, City Attorney's Office, Charlotte, North Carolina, for Appellees.Before MOTZ, KING, and GREGORY, Circuit Judges.Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge GREGORY joined.

OPINION

KING, Circuit Judge:

In September 2007, Philip Benham, Sheryl Chandler, and Operation Save America (collectively, the “Plaintiffs”), initiated this 42 U.S.C. § 1983 action in the Western District of North Carolina, seeking injunctive relief and damages from the City of Charlotte and two of its officials, Keith Parker and Emily Westbrook (collectively, the “City”). The Plaintiffs alleged in their complaint that two Charlotte ordinances contravene, inter alia, the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Following discovery, the City moved for summary judgment on all aspects of the complaint and, on January 8, 2010, the district court granted the motion. See Benham v. City of Charlotte, 682 F.Supp.2d 549 (W.D.N.C.2010) (the “Opinion”). The Plaintiffs have appealed the court's summary judgment ruling. As explained below, because the Plaintiffs are unable to sustain their burden of demonstrating that they suffered a cognizable injury, we vacate the judgment and remand for dismissal for lack of jurisdiction.

I.

A.

In January 2007, the Plaintiffs sought to obtain a permit to conduct an event at Independence Square Plaza in downtown Charlotte to speak about the Supreme Court's Roe v. Wade decision. Those events provide the background for these proceedings, and we begin with an overview of the bifurcated legal framework that governs public gatherings in Charlotte. One ordinance applies to “public assembl[ies],” see Charlotte City Code §§ 19–311 to –313 (the “Public Assembly Ordinance”), and a separate ordinance applies to “picket[s],” see id. §§ 19–301 to -303 (the “Picketing Ordinance”). The Public Assembly Ordinance defines a “public assembly” as

(1) [a] festival or demonstration which is reasonably anticipated to obstruct the normal flow of traffic upon any public street and that is collected together in one place; and

(2) [a] festival on the Old City Hall lawn, the Charlotte–Mecklenburg Government Center Plaza, or in Marshall Park, Polk Park, Independence Square Plaza, Arequipa Park or any other city-controlled park.

Id. § 19–311. As used in the Public Assembly Ordinance, a “festival” is “a concert, fair, exhibit, promotion, community event, block party, or similar event.” Id. A “demonstration” is “a public display of sentiment for or against a person or a cause, including protesting.” Id.

A group seeking to conduct a “public assembly”—including a demonstration anticipated to obstruct street traffic—must apply for and obtain a permit before the event takes place. Charlotte City Code § 19–312(a). The Public Assembly Ordinance spells out several reasons for which a permit may be denied. See id. § 19–312(c). If a permit official denies an application, the permit applicant may appeal, and an appeals official is obliged to conduct a hearing. Id. § 19–312(f). If the denial of the permit application is upheld on appeal, the applicant is entitled to appeal to the Superior Court of Mecklenburg County. Id.

Pursuant to the Picketing Ordinance, a “picket” is defined as

a public display or demonstration of sentiment for or against a person or cause, including protesting which may include the distribution of leaflets or handbills, the display of signs and any oral communication or speech, which may involve an effort to persuade or influence, including all expressive and symbolic conduct, whether active or passive.

Charlotte City Code § 19–301. A group seeking to conduct a “picket” may hold the event by right, without the prior issuance of a permit. Id. § 19–303(a). By-right picketing ordinarily “may be conducted on public sidewalks, ... Independence Square Plaza, [or] any other city-controlled park, ... and shall not be conducted on the portion of the public roadway used primarily for vehicular traffic.” Id. Picketing may not, however, be conducted in certain parks in Charlotte, including Independence Square Plaza, “during a festival that has been permitted at that particular property or when that property has been otherwise reserved for private use.” Id. § 19–303(b)(1).

The foregoing legal framework operates in practice as follows. First, an event must be characterized as a “festival” or a “demonstration.” If the event is a festival, the organizer must obtain a public assembly permit before holding the event. If the event is a demonstration, it may proceed without a prior permit unless either (1) the space has been reserved under § 19–303(b)(1), or (2) the event is “reasonably anticipated to obstruct the normal flow of traffic upon any public street” under § 19–311. When the event would so interfere with traffic, the event organizers must apply for and obtain a permit beforehand. The bottom line, then, is that a “demonstration” is regulated as a “public assembly”—for which the prior issuance of a permit is required—when it will interfere with traffic, but a demonstration is treated as a “picket” if it will not interfere with traffic.

B.

The Plaintiffs submitted their application for a public assembly permit on December 14, 2006, identifying the event as the “Roe vs Wade Memorial” and stating that it was to be held on Monday, January 22, 2007, between 11:30 a.m. and 1:00 p.m., at “Trade [Street] & Tryon [Street]—in front of bronze disc sculpture.” Dist. Ct. ECF No. 26–1.¹ In its Opinion, the district court observed that this area is known as Independence Square Plaza, and that it is located in the “very center of uptown Charlotte.” Benham, 682 F.Supp.2d at 552 n. 1. The permit application stated that the Roe vs Wade Memorial would not involve any street closures, and advised that the event would not involve the sale of alcoholic beverages or food, the provision of portable toilets, or the charging of admission or vendor fees. Dist. Ct. ECF No. 26–1. The permit application described the event as “evangelical, gospel proclamation, praise + worship band, local Christian pastors speaking, post-abortive mothers give testimony, call to repentance,” with a temporary stage for musical entertainment. Id. The application estimated that there would be an attendance of 100, based on a reference to “previous years' attendance,” id., even though plaintiff Philip Benham and the other event organizers had not previously applied for a public assembly permit in Charlotte. Benham, 682 F.Supp.2d at 552 n. 2.

On December 20, 2006, permit official (and defendant) Emily Westbrook informed the Plaintiffs that she could not “accept and process [their] application for a Public Assembly Permit” for the Roe vs Wade Memorial. Dist. Ct. ECF No. 26–2. She explained that, “[w]hile the Public Assembly Ordinance provides for permitting of ‘festivals' at Independence Square Plaza, it does not contemplate permitting ‘demonstrations' at that location. Instead ‘demonstrations' at Independence Square Plaza are covered by the City's Picketing Ordinance.” Id. Westbrook's letter explained further that, because the event would be a “demonstration,” would be held at a park, and was not anticipated to interfere with traffic, it could be held by right under the Picketing Ordinance, which “ does not require a permit.” Id.² The Plaintiffs promptly appealed Westbrook's decision to appeals official (and defendant) Keith Parker, who conducted a hearing on January 3, 2007. Parker upheld Westbrook's decision, ruling that she had properly deemed the proposed event a “demonstration” that “may be held from 11:30 a.m. to 1:00 p.m. on Monday[,] February 22[,] at Independence Square Plaza without the need for a permit other than an amplified noise permit pursuant to Charlotte City Code Section 15–64(a)(6) should the organizers wish to use amplification devices.” Dist. Ct. ECF No. 26–3. The Plaintiffs did not seek review of Parker's appellate ruling, and held their event as scheduled on January 22, 2007. There were no arrests made in connection with the event, although the authorities issued two noise warnings.

C.

Seven months later, on September 20, 2007, this civil action was filed in the Western District of North Carolina, alleging that the City had violated the Plaintiffs' free speech and free exercise rights, and had impinged their due process and equal protection guarantees, as secured by the Constitutions of North Carolina and the United States. The Plaintiffs no longer pursue separate free exercise or due process claims, or separate state claims; the three claims presently pursued are that (1) the Public Assembly Ordinance is unconstitutionally vague and overbroad on its face, (2) the denial of the Plaintiffs application for a public assembly permit violated their free speech and equal protection rights, and (3) the Public Assembly Ordinance, as it interacts with the Picketing Ordinance, unconstitutionally burdens expressive assembly by favoring commercial and recreational assembly, thus contravening the Plaintiffs' free speech and equal protection rights.

Discovery was conducted, and the City thereafter moved for summary judgment on all the claims. The district court heard...